(Photo by Chip Somodevilla/Getty Images)
Last summer we explained why it was a clear 1st Amendment and 5th Amendment violation for the White House to remove Playboy reporter Brian Karem’s press pass, with no warning, after he got into a small verbal tiff with former White House employee Seb Gorka. Lots of Trump supporting people, who seem wholly ignorant of how the Constitution actually works, were very mad at us for reporting on that, and insisted that it was somehow obvious that the White House could revoke a press pass like that, even in retaliation for a reporter’s statements. And yet, just as we predicted, the district court quickly ruled that the White House needed to restore Karem’s pass.
Now, nearly a year later, the DC Appeals court has affirmed that decision and made it quite clear that the White House’s removal of Karem’s pass was unconstitutional. The full ruling is worth reading, and, as with the district court, focuses more on the 5th Amendment due process problems, rather than the 1st Amendment retaliation problems. And just to respond to the same comment that came up multiple times in our comments, no, no one is saying that the White House has to automatically let anyone in to press events. Instead, as the court explains, if the White House is opening up an event to the press, it cannot bar people for “arbitrary” reasons (or for any reasons that violate the 1st Amendment, regarding retaliation for speech).
We began by emphasizing that Sherrill’s claim “[wa]s not premised upon the assertion that the White House must open its doors to the press, conduct press conferences, or operate press facilities.” Id. at 129. But given that “the White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom” and given that “[t]hese press facilities are perceived as being open to all bona fide Washington-based journalists,” we held that “the protection afforded newsgathering under the first amendment . . . requires that this access not be denied arbitrarily or for less than compelling reasons.” Id. at 129 (internal citations omitted). Moreover, “the interest of a bona fide Washington correspondent in obtaining a White House press pass” is not only “protected by the first amendment” but also “undoubtedly qualifies as [a] liberty [interest] which may not be denied without due process of law under the fifth amendment.”
After reciting the details of the verbal encounter between Karem and Gorka, the court notes delves into the 5th Amendment due process problems with Karem’s suspension:
Applying that test, we think Karem’s due process claim is likely to succeed because, on this record, nothing put him on notice of “the magnitude of the sanction”—a month-long loss of his White House access, an eon in today’s news business—that the White House “might impose” for his purportedly unprofessional conduct at the non-press-conference event. Gore, 517 U.S. at 574. True, the Acosta Letter set forth “rules governing future press conferences,” but in that very same letter, the White House expressly declined to adopt “specific provisions for journalist conduct in the open (non-press room) areas of the White House” “in the hope that professional journalistic norms” would “suffice to regulate conduct in those places.” Acosta Letter 1, J.A. 693 (emphasis added). What’s more, although the White House made clear that “failure to abide by” the newly articulated press-conference rules “may result in suspension or revocation of the journalist’s hard pass,” it declined to adopt analogous sanctions for unprofessional conduct at non-press-conference events. Id. Instead, the White House stated that “[i]f unprofessional behavior occur[red] in those settings,” then it would “reconsider this decision”—that is, the lack of formally articulated standards and sanctions—not that it would suspend journalists’ hard passes.
Even assuming the Acosta Letter provided Karem some notice of behavioral expectations “in the open . . . areas of the White House,” id., it failed to put him on notice of “the magnitude of the sanction that [the White House] might impose” for his purported failure to heed any such expectations, Gore, 517 U.S. at 574. To the extent Karem’s “irreverent, caustic” attempts at humor (to use the district court’s language) crossed some line in the White House’s view, those transgressions were at least arguably similar to previous journalistic misbehavior that elicited no punishment at all, let alone a month’s exile. Karem, 404 F. Supp. 3d at 215. In the context of a White House press corps described as an “unruly mob,” id. at 214 (internal quotation marks omitted), Karem’s behavior was not so outrageous as to bring into fair contemplation the unprecedented sanction visited on him.
The White House’s arguments to the contrary are without merit.
In rejecting each of the White House’s arguments, the appeals court even calls one such argument “absurd.”
Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President, shout racial epithets at a foreign dignitary, or sexually harass another member of the press corps.” Appellants’ Reply Br. 4. But just as “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,” Hoffman Estates, 455 U.S. at 495, the White House cannot defend the thirty-day suspension here on the ground that some other, egregious conduct might justify the same sanction. And even if the White House could impose that sanction for such egregious conduct consistent with due process, Karem’s behavior as reflected in the preliminary injunction record fell below that threshold. Notions of professionalism are, after all, context-dependent. Cf. Strickland v. Washington, 466 U.S. 668, 693 (1984) (“[A]n act or omission that is unprofessional in one case may be sound or even brilliant in another.”). “[W]ithin the context of such an unruly event” as the Summit, “where jocular insults had been flying from all directions,” Karem, 404 F. Supp. 3d at 215–16, Karem’s statements were not so egregious as to justify suspending his hard pass for thirty days without prior notice.
Of course, the White House was still able to keep Karem suspended for 18 days before the original decision came down, and even this alone might be intimidating to the White House press corps, which was undoubtedly the key reason behind this in the first place.
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Kathryn Rubino is a Senior Editor at Above the Law, and host of 
